SZSOL v Minister for Immigration

[2013] FCCA 735

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 735

Catchwords:
MIGRATION – Application seeking review of a decision of the Refugee Review Tribunal – show cause hearing – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 425, 427, 476
Federal Circuit Court Rules 2001 (Cth), r.44.12

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Tickner and Ors v Chapman and Ors [1995] FCA 1726; (1995) 57 FCR 451; (2003) 133 ALR 226
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
VCAK of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432

Applicant: SZSOL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 228 of 2013

Judgment of: Judge Nicholls

Hearing date: 12 June 2013

Date of Last Submission: 12 June 2013

Delivered at: Sydney

Delivered on: 12 June 2013

REPRESENTATION

The Applicant: In person

Appearing for the First Respondent: Mr R White

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application made on 7 February 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $2,700.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 228 of 2013

SZSOL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. On 7 February 2013 the applicant made an application to this Court, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision by the Refugee Review Tribunal (“the Tribunal”), made on 10 January 2013, to affirm the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. I note the following background from the bundle of relevant documents (“Court Book” – “CB”) that the Minister has put before the Court. 

2. The applicant is a citizen of India (CB 12). He arrived in Australia on 8 November 2008 (CB 13) on a student visa ([19] at CB 69).

3. Nearly three and half years later, on 12 April 2012, the applicant applied for a protection visa (CB 1 to CB 29, with attachments). His claims to protection were set out in a statement accompanying his application (CB 26). Relevantly, and in essence, the applicant claimed to have fallen into a physical argument with a group of men in India who were harassing him and his then girlfriend (CB 26.2). He said he subsequently became aware that these were members of the “KLF”, which he described as an “extremist group” who were “like terrorists” (CB 26.3). The applicant claimed that these men subsequently came looking for him and that he was told that if they were to find him they would kill him.  As a result, the applicant said he left India and came to Australia (CB 26.4). 

4. The applicant did not attend a scheduled interview with the Minister’s delegate (CB 42). In any event, the delegate found that the harm that the applicant claimed to fear from the “KLF” was not for a Refugees Convention reason or ground (CB 44.5 to CB 45.5).

5. The delegate also considered the complementary protection criterion under the Act (s.36(2)(aa)). However, the delegate found that the applicant’s failure to provide “any detailed information”, or to attend the scheduled interview, meant that the delegate could not be satisfied there was a real risk of the applicant suffering significant harm (CB 46.5). Therefore, the visa application was refused.

The Tribunal

1. On 20 July 2012, the applicant applied to the Tribunal for review of the delegate’s decision (CB 48 to CB 53). The Tribunal invited the applicant to attend a hearing (CB 56 to CB 57 and CB 59). The applicant did attend and was assisted at that time by an interpreter in the Punjabi language (CB 63). 

2. On 10 January 2013, the Tribunal decided to affirm the delegate’s decision (CB 66). Central to the Tribunal’s findings was that the Tribunal “did not find the applicant to be a credible witness” ([41] at CB 72). In particular, the Tribunal found the applicant’s response to questions at the hearing to be “vague, limited and evasive” ([41] at CB 72). The Tribunal said that, “the paucity of the applicant’s evidence” led it to reject the applicant’s claims with respect to the “KLF” members ([42] at CB 72). Since no other claims to protection had been advanced by the applicant, even when specifically asked to do so by the Tribunal, the Tribunal found that the applicant did not satisfy either criterion for the grant of the protection visa under s 36(2)(a) or (aa) of the Act.

The Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. The tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed engage in an active intellectual process in respect of Applicant’s claim.

   2. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to heard in respect of those matters.

   3. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   4. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.

   5. The Tribunal has failed to investigate the claim, specifically the grounds of persecution in India. Therefore the Tribunal decision dated on 10 January 2013 was a judicial error.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter the applicant appeared in person. He was assisted by an interpreter in the Punjabi language. The applicant was unable to explain the grounds that he had put before the Court, grounds which he said were drafted by one of his “friends”. In light of what can only, even charitably, be described as the formulaic nature of the grounds often seen in this Court, I sought to explain to the applicant the nature of the legal proceedings which he had initiated in this Court. That is, that the Court could not consider the question of whether or not he was entitled to protection in this country. Rather, that the Court could only be concerned with whether the Tribunal’s decision was affected by some error of law, such that the Court could then return the matter to the Tribunal for reconsideration according to the law.

2. The applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” and various orders were made giving the applicant the opportunity to file and serve any further material, either by way of amending his application, or in support of any such application.

3. The matter was set down for further directions today. The applicant was on notice of the need to press his application to the Court in a manner that was consistent with some legal issue that the Court would consider.

4. When the matter was called today, the applicant again appeared in person. He was again assisted by an interpreter in the Punjabi language. Mr R White appeared for the respondent Minister.

5. Nothing further has been put before the Court by the applicant and, in light of that, the Minister today, through his representative, sought that the Court proceed to a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). In light of the matters to which I have already referred, I took the view that it was appropriate to agree to the Minister’s request.

6. Before the Court, the applicant said he had nothing to say in support of the application to the Court. He did say that he did not speak to the lawyer who had been assigned to provide him with advice. In that regard, I considered whether the Court should proceed with the show cause hearing today. I note two things. 

7. First, there is a Certificate on the Court’s file, provided by the relevant panel lawyer, which confirms that no discussion took place with the applicant. However, the lawyer certifies that written advice was provided to the applicant and was sent to him by registered post. The particular panel lawyer is Mr C Jackson of counsel, who is well known to the Court as he often appears on behalf of applicants in matters of this type.

8. Second, as Mr White correctly submitted, in my view, there is Federal Court authority to support the proposition that there is no entitlement by an applicant to obtaining such legal advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

9. In any event, I note that since 10 April 2012 when the applicant was put on notice by the Court of the need for the Court to discern some legal issue in these proceedings, he had, in the intervening period, sufficient time to arrange any separate legal advice on his own initiative. The applicant had over two months for that purpose. The fact that he took no steps is entirely a matter for him. 

10. The Minister also submitted that the Tribunal plainly proceeded to its conclusion on the basis of its rejection of the applicant’s factual claims. As I said earlier, these factual claims which were, in context, the entire basis, or genesis, for the applicant’s claim to fear harm were essentially that he and his girlfriend, in 2008, were harassed, he assaulted a particular person in the group of men who were harassing them, and he was then subjected to continuous threats.

11. The Tribunal did not accept that the applicant was a credible witness. It pointed to the “paucity” of the evidence before it, and to the fact that the applicant had not made any other claims for protection other than this particular incident. It squarely put its concerns to the applicant at the hearing that it conducted with him. As was submitted by the Minister today, it was reasonably open to the Tribunal to make the findings that it did, and for which it gave reasons. 

12. The applicant’s grounds, taken at their highest, really seek to challenge the Tribunal’s factual findings (see further below). In the absence of anything of substance now from the applicant, a show cause hearing pursuant to r.44.12 of the Rules is appropriate.

13. The issue before the Court today is whether the applicant, through his application, has put forward arguable grounds for the relief that the application seeks or even whether any such grounds are otherwise available to him. I note from the application form itself, the applicant has not indicated what relief he seeks of the Court. However, it can be allowed that what the applicant really seeks, consistent with the application that he has made, is that the matter be returned to the Tribunal and reconsidered according to the law. 

14. None of the grounds put forward by the application raise an arguable case for the relief that I assume the applicant is seeking. Putting to one side the formulaic nature of these grounds and treating them at face value, the following can be said.

Ground One

1. In ground one, the applicant complains that the Tribunal failed to give “active or intellectual process” in respect of his claim. This may be a reference to the notion of “active intellectual process” as referred to in Tickner and Ors v Chapman and Ors [1995] FCA 1726; (1995) 57 FCR 451; (2003) 133 ALR 226 and subsequently in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. Alternatively it may be some reference to a failure to give “proper, genuine and realistic consideration” as it was considered in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30] per the Court (see also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [37] per Gummow J).

2. It could also be that the applicant may seek to complain that the Tribunal failed to deal with a claim expressly made or clearly arising on the material before it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630). There is also a reference in this ground to a denial of procedural fairness which is repeated in ground two.

3. The situation is that, whatever generous meaning is given to what is stated at ground one, none of it reveals an arguable case for the relief that the applicant seeks.

4. There is nothing to show that the Tribunal failed to deal with the claim that the applicant had advanced. In fact, there was essentially only one claim advanced and that was the matter surrounding the incident in 2008. The Tribunal discussed that matter with the applicant at the hearing. The character and extent of that discussion addresses any complaint of a denial of procedural fairness. The Tribunal gave the applicant every opportunity to expand on, and explain, his claim.

5. Ultimately, the Tribunal made findings which were reasonably open to it on what was before it and for which it gave reasons (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 and Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). It is inappropriate to describe, or to assert, in the circumstances that the Tribunal failed to engage in any active intellectual process, or failed to have any active intellectual engagement with the claims as made by the applicant, when patently, on any plain reading of the Tribunal’s decision record, it did just that.

6. Even putting to one side its formulaic nature, the complaint really is a disagreement with Tribunal’s conclusion. It seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It does not raise an arguable case.

Ground Two

1. Ground two asserts that the Tribunal denied the applicant procedural fairness in that it reached an adverse conclusion about the applicant’s credibility, and such a conclusion was not open to it on the known material. Further, that the Tribunal did not give the applicant the opportunity to be heard. 

2. How that can be asserted, in light of what has been put before the Court, can only be explained by the fact that whoever drafted this on behalf of the applicant had no regard to the Tribunal’s decision record. As I said now, and on a number of occasions, the Tribunal’s findings on credibility were reasonably open to it on what was before it, and it gave reasons. 

3. The applicant has not put before the Court any evidence, for example, a transcript of the hearing before the Tribunal, to challenge the Tribunal’s account of what occurred. Therefore, based on the only account that is before the Court, that is the Tribunal’s own account, it is quite clear that the applicant was given the opportunity to be heard in relation to his claims and, in particular, on the Tribunal’s concerns it had in accepting his claims. The Tribunal plainly gave the applicant that opportunity. No arguable case is raised in the circumstances by this ground.

4. I should just note that, there is no obligation on the Tribunal to give the applicant a draft decision record before finalising its decision, if that is what is implied by this ground. I note, the Tribunal complied with s.425 of the Act in that the issue that was dispositive of the review, that is its rejection of the entire factual basis of the applicant’s claims, was squarely raised with him. (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63).

Ground Three

1. What exactly is meant by ground three, is not clear. But, at best, it could be said that the Tribunal’s lack of satisfaction, or its finding that it could not be satisfied that the applicant was not a person to whom a protection visa must be granted, was not made in accordance with the provisions of the Act. No particulars were provided.

2. Nor can I see, on what is before me, that there is any basis for any such assertion. It is the case that if the Tribunal reached the requisite level of satisfaction, having regard to ss.65 and 36 of the Act, that the protection visa must be granted. But, if it is unable to reach the level of satisfaction as mandated by the Act then the visa must be refused (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). There is nothing before the Court to even indicate that the Tribunal did not act in accordance with the relevant provisions of the Act in this regard.

3. No arguable case is raised by ground three. 

Ground Four

1. The fourth ground of the application asserts that the Tribunal’s decision was unjust, and did not take into account the “full gravity” of the applicant’s circumstances and the relevant consequences.

2. First, it is by now trite to note that, the Tribunal is not obliged to provide a “fair”, or what the applicant considers to be a “fair”, “just”, or even “correct” outcome. The Tribunal must provide the applicant, by law, with a “fair” process (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). On what is before the Court, I cannot see that the Tribunal failed in this regard.

3. In answer to what appears to be the complaint that the Tribunal failed to consider the full gravity of his circumstances, then there is nothing before the Court to show that the Tribunal did not consider the extent of the claim as presented. It is simply that the Tribunal did not believe what the applicant said. Any such complaint, in the circumstances therefore, can only be seen simply as a disagreement with the Tribunal’s finding as to the applicant’s credibility. No arguable case is raised here. 

Ground Five

1. Ground five of the application asserts that the Tribunal failed to investigate the applicant’s claim and the grounds of persecution in India. Again, it is not exactly clear what legal error is being asserted here.

2. If it is a failure to investigate the applicant’s claims in the sense of considering the claims then, as I have already said, there is nothing to suggest that that was the case. If the complaint is that the Tribunal should have made some inquiry about the applicant’s claims in India then there is nothing in this case to show that there was an “obvious inquiry about a critical fact, the existence of which is easily ascertained”, such the Tribunal’s failure to make this inquiry may lead to jurisdictional error (Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]).

1. In any event, it is important to note that it was for the applicant to put forward his case. If the Tribunal was not able to reach the requisite level of satisfaction such that the protection visa must be granted then there is no general duty on the Tribunal to make further inquiries in circumstances where the claims as presented were found not to be credible or genuine (see s.427 of the Act and VCAK of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 459 at [27], WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24] – [25] and W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 at [74] – [78]). Here, again, no arguable case is raised for the relief that the applicant apparently seeks.

Conclusion

1. I cannot see that any of the applicant’s grounds raise an arguable case for the relief sought. Nor can I otherwise see that any such argument is available in the circumstances presented to the Court.

2. In all therefore, it is appropriate that the application to the Court be dismissed pursuant to r.44.12(1)(a) of this Court’s rules. I will make an order accordingly. Further, it is appropriate that a costs order be made for this matter in the usual way. No argument has been raised against the making of the order. As to the amount, I am satisfied, having regard to the work done by the Minister’s solicitors, that the amount sought is a reasonable amount in the circumstances. I will make the costs order.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  5 July 2013